Tuesday, January 15, 2013

Canada's Mosaic: Shifting Patterns

Over the past few years a movement has emerged to reconfigure Canada's relationship to multiculturalism. It's been a subtle but determined effort to alter minority access to justice. This past June, Section 13 of the Canadian Human Rights Act was repealed by Harper's Conservative government in response to what proponents called strengthening freedom of expression. As Maclean's wrote:

"The effect of killing Section 13 will be debated for years among anti-racist groups and civil libertarians. But it is undoubtedly a turning point. Since 1999, Canadians who felt aggrieved by material transmitted online have been encouraged to seek redress under federal human rights law, which targeted material 'likely to expose a person or persons to hatred or contempt' based on grounds of discrimination like race, religion or sexual orientation. Storseth’s bill repeals the provision outright, leaving the Criminal Code as the primary bulwark against the dissemination of hate propaganda by electronic means."

Section 13 read:

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

Interpretation

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

The Criminal Code doesn't allow minority voices equal access to the instruments of justice that the Canadian Human Rights Act was designed to ensure. It's no surprise that the Canadian Bar Association, representing 37,000 jurists, lawyers, notaries, law teachers and students across Canada, was opposed to repealing Section 13. As CBA spokesperson Shelina Ali wrote:

"The CBA notes that the evidentiary standard under the Criminal Code is high; the offence must be proven beyond a reasonable doubt. By contrast, the Human Rights Act provides a lower standard of proof, the civil standard based on a balance of probabilities. The lower standard offers protection to individuals and groups who are the target of hate speech that may be very damaging, but does not meet the criminal law standard. According to the CBA, Section 13(1) 'protects minorities from psychological harm caused by the dissemination of racial views which inevitably result in prejudice, discrimination and the potential of physical violence.'

The CBA reiterates the Supreme Court's position that the right to freedom of expression is not absolute and limits to this right can be warranted."

This last point is crucial: in Canada, unlike in the U.S. where the First Amendment prohibits restrictions on freedom of speech, Section 1 of the Charter of Rights and Freedoms actually places "reasonable limits" on freedom of expression. Canada has learned through its own history the value of protecting human rights to ensure that diversity flourishes, but Harper's regime is devoted to clawing back these hard-won victories. Section 13 may have needed to be reformed, but it was a national crime to kill it.